JUDGMENT
Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the first appellate court whereby his suit for declaration to the effect that the agricultural land measuring 139 Kanals 10 mar-las is owned and possessed by the plaintiff and that the defendant has no right or interest in the suit land was dismissed in appeal. The learned trial court has decreed the suit but the learned first appellate court has reversed the judgment and decree in appeal and the suit was dismissed,
2. Mahant Lachhman Dass plaintiff alleged that the suit land measuring 139 kanals 10 marlas situated in village Phaloke is owned and possessed by the plaintiff. It is alleged that the said land was earlier owned and possessed by Mahant Kishan Dass Chela Mahant Attar Dass resident of Phaloke. Mahant Kishan Dass during his life time has appointed him as his Chela. After his death Bekh (congregation) has appointed plaintiff as his Chela of Mahant Kishan Dass. Thus, the plaintiff is owner in possession of the suit land. The defendant has taken a preliminary objection that the suit is bad on account of non-joinder of Puro, sister of the plaintiff and the defendant and heirs of Banto, deceased, sister of the plaintiff and defendant. On merits, the defendant admitted that the Mahant Kishan Dass has appointed plaintiff as Chela but the allegations regarding the possession of the plaintiff of the property as owner was denied. It was alleged that the land in dispute is self-acquired property of Mahant and the land in dispute was not the property of the Math.
3. Initially, the learned trial court framed the following 5 issues:
1. Whether the plaintiff has locus-stained to bring the suit? OPP
2. Whether the suit is bad on account of non-joinder of Puro and heirs of Banto? OPD
3. Whether the plaintiff is precluded from bringing the present suit under Order 2 Rule 2 C.P.C.? OPD
4. Whether the plaintiff is estopped from bringing the present suit by his own act and conduct? OPD
5. Whether M. Kishan Dass executed a valid will dated 22.2.70 and 4.10.70? OPD
4. The suit was decreed by the learned trial court on 5.4.1976. However, in appeal, the suit was remanded vide order dated 25.11.1978 and the following additional issues were framed:
6. Whether property in dispute is owned by M.Lachhman Dass as a Mahant or in his personal capacity? OPP
7. Whether Kishan Dass has become the owner of the property as a Mahant or in the personal capacity? OPP
5. After the amendment of the written statement following issues were also framed:
8. Whether the suit is time barred? OPD
9. Whether there was a family arrangement between Kishan Dass and the parties, if so its effect? OPD
10. Relief.
6. The learned trial court decided issues No. 1, 6 and 7 together holding that the property in dispute is not the personal property as the property was held by Mela Ram and then it devolved upon Chela to Chela thus the property in the hands of Mahant Kishan Dass was a property of Dera and not self-acquired property. However, the learned first appellate court dismissed the suit on the ground that the suit has been filed In his personal capacity and not as Mohtman/manager of Dharamshala, Phaloke or in its name and thus, the plaintiff is not entitled to the relief. Relevant findings recorded by the first appellate court in this respect is reproduced below:
“The counsel for the respondent made repeated submissions that the suit has been filed by the plaintiff as Mahant, Chela & of Mahant Kishan Dass. Be that as it may but the suit has been filed in his personal capacity nor as Mohtman/Manager of Dharmshala, Phaloke or in its name. Viewed from any angle, the plaintiff is not entitled to the relief. Accordingly, the findings recorded under issues Nos. 1, 6 and 7 are set aside.
7. Before adverting to the merits of the controversy it may be pointed out that the appellant has earlier moved an application under Order 6 Rule 17 CPC dated 27.11.1981 to permit the plaintiff to sue as Chela of Mahant Lachhman Dass before the fist appellate court. The said application was dismissed. The revision petition against the said order was also dismissed. Subsequently, the plaintiff filed an application under Order 1 Rule 10 CPC wherein it was prayed that the Dera alias Dharmshala though Mahant Lachhman Dass be allowed to be substituted in place of respondent or be allowed to be added as co-plaintiff along with the present plaintiff. The application was dismissed by the learned first appellate court on 19.5.1982.
8. It is also required to be noticed that a statement was made by Shri R.S. Sood, counsel for the defendant and Shri Kartar Nath, counsel for the plaintiff on 25.3.1976 before the trial court to the following effect:
“After going through the documents Ex.D6 to D29 and judgment Ex.P1 we agree that the land in suit is the same land which was occupied by Mela Ram chela Gehal Dass as recorded in jamabandi Ex.D16 of the year 1865. We also agree that Mahant Kishan Dass Chela of Attar Dass occupied this land as Muafidar in the year 1911-12 as recorded in Ex.D11. It is also admitted that Mahant Kishan Dass continued to occupy the same land as Muafidar and he was occupancy tenant till 1953. He was owner by virtue of the judgment Ex.P1 and the operation of the Act i.e. Punjab Occupancy Tenants Vesting of Proprietary Rights Act, 1953.”
9. In view of above facts, the following substantial questions of law arise for consideration of this court in this appeal:
1. Whether the order of the first appellate court declining the addition/substitution of Dera/Dharamshala of the plaintiff is sustainable?
2. Whether the finding recorded by the first appellate court that the suit has been filed by the plaintiff in personal capacity nor as Mohtmin/Manager of Dharamshala is sustainable in view of facts on record?
3. Whether the plaintiff is entitled to the declaration to the effect that the Dharamshala/Dera is owner and that Mahant Lachhman Dass is in possession of the property in view of the evidence on record?
10. The learned counsel for the parties have addressed argument on issues No. 1, 6 and 7 alone before this court. It was alleged by the learned counsel for the defendant that the plaintiff has sought declaration of the property as vesting in him in his personal capacity, whereas it is sought to be alleged and proved that the property is in fact Dera property. Since the plaintiff has sought declaration to be owner and in possession in a suit filed in his personal capacity, therefore, the judgment and decree passed by the learned first appellate court is perfectly valid. However, the said argument of the learned counsel for the defendant is not acceptable in view of the fact that vide order dated 25.11.1978, the suit was remanded and additional issues No. 6 and 7 were framed. Issue No. 6 was to the effect whether the property in dispute is owned by Mahant Lachhman Dass as Mahant or in his personal capacity. Similarly, issue No. 7 was to the effect that Kishan Dass, the predecessor-in-interest has become owner of the property as Mahant or in his personal capacity. The controversy between the parties was thus, clear and categorical to the effect whether the property in dispute is owned by Mahant Lachhman Dass as Mahant or in his personal capacity. To (clarify the fact, the plaintiff has in fact moved the application under Order 1 Rule 10 CPC to substitute the plaintiff as Dera Dharamshala through Mahant Lachhman Dass or in the alternative to add Dera/Dharamshala as co-plaintiff. The learned first appellate court had dismissed such application influenced by the fact that earlier application for amendment of plaint under Order 6 Rule 17 CPC has been dismissed, As a matter of fact, the learned trial court has granted declaration to the effect that the suit land belongs to Dera managed by Lachhman Dass plaintiff and plaintiff is in possession of the suit land. Therefore, it was only description of the parties which was sought to be corrected by virtue of an application under Order I Rule 10 CPC. There was no justifiable reason with the first appellate court to decline such application. Consequently, the order dated 19.5.1982 passed by the first appellate court declining the application is set aside. Dera alias Dharambala, Pha-loke through Mahant Lachhman Dass Chela is allowed to be substituted in place of the present plaintiff in the interest of justice. It is only description of the plaintiff which alone is required to be corrected. Thus it is held in respect of first substantial question of law that the first appellate court was not justified in declining the application of the plaintiff to substitute dera/Dharamshala as the plaintiff.
11. In respect of second substantial question of law it is stated that the learned first appellate court has returned cryptic finding as mentioned above by dismissing the suit by concluding that the plaintiff has filed suit in personal capacity. The first appellate court has not adverted to the fact of framing of additional issues and the evidence discussed by the learned trial court to return finding on additional issue in favour of the plaintiff. The first appellate court could not reverse the finding recorded by the learned trial court without giving cogent, sufficient reasons to take a different view than the one taken by the learned trial court. The learned trial court has proceeded on the basis of averments made in the plaint whereas the additional issue was framed and the parties have understood the case as to the controversy between the parties. Thus, the finding recorded by the first appellate court that the suit has been filed by the plaintiff in personal capacity without discussing the evidence is wholly illegal and not sustainable.
12. In respect of third substantial question of law whether the suit land was the personal property of Mahant Kishan Dass or was a Dera property, the plaintiff has examined PW1 Gurbax Singh who has deposed that the property in dispute was of Mahant Kishan Dass and after his death Mahant Lachhman Dass is in possession of the property as Mahant and the property is of the Dera. He has stated that Mahant Kishan Dass could not alienate the said property. Mahant Lachhman Dass has appeared as PW2. He has stated that Kishan Dass was Chela of Attar Dass and Attar Dass was chela of Mela Ram. He has stated that the income from the land was being used for the benefit of Gu-rudwara and that the suit land was not self-acquired property of Kishan Dass and he could not alienate the suit property in any manner. The suit property was earlier-in pos-session of Mela Ram Chela of Gehal Dass in the year 1965. Mela Ram was shown in possession of the suit land in the jamabandi for the year 1865 Ex.D16. After the death of Mahant Mela Ram the land in suit was in possession of Attar Dass Chela of Mahant Mela Ram as per the jamabandi Ex.D13 for the year 1931/12, Mahant Kishan Dass Chela Mahant Attar Dass came in possession of the suit land as per jamabandi Ex.D1l, Mahant Kishan Dass remained in possession till his death. Mahant Kishan Dass has filed a suit against the Gram Panchayat which was decreed by the learned Sub Judge Taran Taran vide decree dated 2.9.1959 Ex.P1 wherein declaration was issued in favour of Mahant Kishan Dass to the effect that the suit land vested in the Dera of which Mahant Kishan Dass was Mahant and was in possession as owner. Ex.P4, a Pedigree table, shows that Kishan Dass was Chela of Attar Dass and Attar Dass was Chela of Mela Ram and Mela Ram was chela of Gehal Dass. Ex.P6 is a Pedigree table which shows that Kishan Dass was actual son of Gainda Singh. There is nothing on record to prove that Kishan Dass inherited the property from Gainda Singh. Kishan Dass got the property as Chela from Attar Singh and Lachhman Dass got the property from Kishan Dass as Chela.
13. Learned counsel for the defendant could not point out any evidence that the property from the time of Mahant Gehal Dass has ever been succeeded by the natural heirs and not by the Chela appointed by congregation. In the absence of any evidence by the defendant wherein the property from the time of Mahant Gehal Dass has devolved upon to successive chela, I am unable to uphold that Mahant Kishan Dass was holding the property in his personal capacity. It is evident from jamabandi Ex.D16 (1865), then Jamabandi Ex.D13 (1911) and Jamabandi Ex.D1 1 that the property has devolved upon from Mela Ram to Attar Dass and from Attar Dass to Mahant Kishan Dass and from Mahant Kishan Dass to Mahant Lachhman Dass. Thus, it was not the personal property of Mahant Kishan Dass but property of Dera which was succeeded by respective Chelas from time to time.
14. The defendant has admitted in statement recorded before the trial court “in the year 1976 that the land in suit is the same land which was occupied by Mela Ram Chela Gehal Dass in the jamabandi Ex.D16 and that Mehant Kishan Dass chela of Mahant Attar Dass has occupied this land as Mufidar in the year 1911-12 as recorded in jamabandi Ex.D1 1 being occupancy tenant till 1953. Learned counsel for the defendant argued that Mahant Kishan Dass was a occupancy tenant which was a personal right being a Mufidar. Thus, the plaintiff is not entitled to the declaration asked for. It was contended that remissions from the payment of land revenue were granted by the competent authorities from time to time in the name of individual Mahant and therefore, it is personal property of Mahant and not that of Dera. The said argument of the learned counsel for the defendant is not sustainable for more than one reason. Firstly in judgment Ex.P1 it has been concluded that the suit land described in the heading of the plaint had vested in Dera of which Kishan Dass was Mahant. The relevant operative para of the judgment reads as under:
“6. From the above discussions and my findings on the above referred issues, the present suit of the plaintiff for declaration to the effect that the suit land described in the heading of the plaint had vested in the Dera of which he was the Mahant and was in possession as owner and that the defendant, Gram Panchayat had no right of interest in the suit land, is hereby decreed as against the defendant, leaving the parties to bear their own costs in the cause. Decree sheet be prepared accordingly.
15. Secondly, the remissions from the land revenue is not determinative of the fact whether the property is personal property of a Dera property. The competent authority could remit the payment of land revenue for one or the other reason. However, the fact remains that the declaration of vesting of right in Mahant Kishan Dass was made by the civil court in the year 1969 in terms of Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act, 1952. Section 2(f) of the Act defines occupancy tenants which includes the predecessor and successor-in-interest by the occupancy tenant. Therefore, Mela Ram who is recorded a person in possession of the suit property in the year 1865, shall be occupancy tenant. The competent court had passed a decree to the effect that the land vested in Dera. Therefore, the findings recorded on issues No. 1, 6 and 7 are answered in favour of the plaintiff to the effect that earlier Mahant Kishan Dass was in possession of the suit land as Mohtmim of Dera and after his death Mehant Lachhman Dass is in possession of the suit land as Mohtmim of the Dera. Consequently, the judgment and decree passed by the learned trial court is ordered to be restored.
16. In view of above, the judgment and the decree of the first appellate court is set
aside and that of the learned trial court is restored and the suit of the plaintiff is decreed
to the effect that the Dera of Udasi Sadhu is owner of the suit land which is being man
aged by the plaintiff Mahant Lachhman Dass. No order as to costs.